HKSAR v. MD EMRAN HOSSAIN

CACC 330/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 330 OF 2014

(ON APPEAL FROM DCCC NO. 492 OF 2014)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1. On 19 September 2014, the applicant (Md Emran Hossain), having been convicted by District Court Judge Woodcock on a charge of burglary, was sentenced to 3 years’ imprisonment. On 25 September 2014, the applicant sought leave to appeal against conviction and sentence (the leave application). Macrae JA heard the leave application as a single judge of the Court of Appeal under s 83Y(1) and (2)(a) of the Criminal Procedure Ordinance (the Ordinance) and, on 2 June 2015, dismissed it. The applicant renewed his application (the renewed application) on 8 June 2015 under s 83Y(3) of the Ordinance.

2. On 2 December 2015, the Court of Appeal (Macrae, McWalters and Pang JJA) also dismissed the renewed application and, on 10 December 2015, handed down its reasons.  The Court of Appeal further ordered, under s 83W of the Ordinance, that six weeks of the time in which the applicant was in custody pending the determination of his appeal should not be reckoned as part of his sentence.

3. At the renewed application, the applicant, who was not legally represented, did not object to Macrae JA sitting as a member of the Court of Appeal.

4. By an “Application for Certificate (Out of Time)” filed on 12 February 2016, the applicant, represented by Mr McCoy SC, invited this Court, pursuant to s 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, to certify that points of law of great and general importance are involved in the Reasons for Judgment of the Court of Appeal dated 10 December 2015.  No explanation has been given by the applicant as to why his application was made out of time.

5. The questions of law said to be of great and general importance are:

“1. Where, pursuant to s83Y(2)(a) Criminal Procedure Ordinance Cap 221, a single judge has dismissed an application for leave to appeal against conviction and/or sentence, (‘the initial application’) can that single judge lawfully be a member of the Court of Appeal to hear and determine a renewed application, pursuant to s83Y(3) Criminal Procedure Ordinance, for leave to appeal against conviction and/or sentence (‘the renewed application’)?

2. Does the decision of a single judge to dismiss the initial application amount to disqualifying pre-determination such that the single judge cannot lawfully sit to hear and determine the renewed application as a member of the Court of Appeal?

3.  Did the presence of the single judge in the initial application as a member of the Court of Appeal in the renewed application, render the Court of Appeal inquorate?”

6. From the extensive submissions relating to the application, the essential question is simply “can the single judge, who has refused (or determined) a leave to appeal application under s 83Y(2)(a) of the Ordinance, sit as a member of the bench in the renewed application under s 83Y(3)?”.

7. Mr McCoy emphasized the constitutional right of a convicted person, under Article 11 of the Hong Kong Bill of Rights, Cap 383, to have his conviction and sentence reviewed by a higher tribunal according to law.  He argued, relying on s 2 of the Ordinance, (“an appellant includes a person who has given notice of application for leave to appeal”), that the renewed application is an appeal from the leave application.

8. Mr McCoy also relied on s 34(3) of the High Court Ordinance, Cap 4, which provides that a judge sitting as a member of the Court of Appeal shall not determine any application in proceedings incidental or preliminary to an appeal from a judgment or order made by him.  Mr McCoy submitted that the Court of Appeal was not lawfully composed when dealing with the renewed application, when it consisted of the judge who had refused the leave application.

9. Mr McCoy further suggested that, when Macrae JA, having refused the leave application and in so doing used very strong term, also sat in the Court of Appeal in the renewed application, there is the appearance of bias, if not actual bias.

10. Mr McCoy explained that the applicant had failed to raise this issue at the hearing of the renewed application because he was unrepresented.

11. Mr William Tam SC, for the respondent, in his written submissions, opposed the application firstly on the basis that it is out of time.  He submitted that the points of law were never argued before the Court of Appeal, and thus were not “involved in the decision” of the Court of Appeal on 2 December 2015, as required under s 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  He emphasized that a new point thus raised will only be entertained in truly exceptional cases. (See Flywin Company Limited v. Strong & Associate Limited (2002) 5 HKCFAR 356, as applied in HKSAR v. Yam Chim Kwan FAMC 57/2012) Mr Tam appeared to be suggesting that the applicant had waived his right to object to the composition of the Court of Appeal that dealt with the renewed application although he had not elaborated this point in his oral submissions.

12. Mr Tam further submitted that renewed applications are not “appeals” so that section 34(4) of the High Court Ordinance Cap 4 applies, but are rather more analogous to the review process for Magistrates.  Mr Tam argued that there is no merit in the suggestion that the single Justice of Appeal may be said to be biased or perceived to be biased as this is the process established by the Legislature for obtaining leave (there being no express provision prohibiting a single judge from being a member of the full court).

13. Mr Tam suggested, again only in his written submissions, that Mr McCoy’s argument, if correct, would have overreaching consequences as it would lead to the risk of not having enough judges to hear appeal cases when a single judge who has dealt with a bail application or a leave application is precluded from hearing the appeal or the renewed application.

Consideration

14. It is perhaps not difficult to appreciate the logic and the force of Mr Tam’s written argument that if a single Justice of Appeal who has refused a leave application is precluded from hearing the renewed application, there is a risk of not having enough judges to hear criminal appeals when the number of judges dealing with such appeals in the Court of Appeal is very limited.  However, we are not persuaded that Mr Tam’s concern is a matter relevant to our consideration.  The resource implication arising from a decision of this court is an administrative matter that can have no bearing on our judicial decision.

15. Here we are concerned with the fundamental right of a convicted person to have his conviction and sentence reviewed by an independent and impartial tribunal in a fair hearing.  Such a right can be waived, but to be a valid and binding one, the waiver must be unequivocal.  In Millar v Dickson [2001] UKPC D4, Lord Hope of Craighead said at para. 54:

“In Hakansson and Sturesson v Sweden 13 EHRR 1, 16, para 66 the court said that, while the public character of court hearings constitutes a fundamental principle enshrined in article 6(1), neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public so long as this is made in an unequivocal manner and is not counter to any important public interest. The rule that, according to the court’s case law, waiver of a right guaranteed by the Convention, in so far as it is permissible, must be established in an unequivocal manner was emphasised in Oberschlick v Austria 19 EHRR 389 and Pheifer and Plankl v Austria 14 EHRR 692, in the context of a discussion in each case as to whether there had been a waiver of the right to an independent and impartial tribunal. The rigorous nature of the requirement that the waiver be unequivocal is illustrated by the grounds on which the argument on waiver was rejected.”

16. We noted that at the renewed application before the Court of Appeal, the applicant was not legally represented and it had not been pointed out to him the significance of the issue that we are concerned with.  Mr McCoy referred us to the stringent requirements for setting up a waiver in respect of a challenge of apparent bias as discussed in Jones v DAS Legal Expenses Insurance Co Ltd [2004] IRLR 218 §35 and Smith v Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370 §§28 and 29.  In addition to making sure that the party said to be waiving his right is aware of all the material facts, the court must also ensure that he is aware of the consequences of the choice open to him and afford him a fair opportunity to reach an unpressured decision.  On these subjects, the observations of the Court of Appeal in Jones v DAS Legal Expenses Insurance Co Ltd, supra at §35(v) and (vi) are relevant, namely

“(v) The options open to the parties should be explained in detail. Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.

(vi)  The parties should always be told that time will be afforded to reflect before electing.  That should be made clear even where both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. …”

17. For the purpose of this application, we are prepared to deal with the matter on the basis that the absence of any objection by the applicant to Macrae JA sitting as a member of the Court of Appeal in the renewed application should not be construed as a voluntary, informed and unequivocal waiver of his right to a fair hearing.

18. However, we do not accept the suggestion that the applicant’s constitutional right to have his conviction and sentence reviewed by a higher tribunal has been infringed.  The conviction and sentence against the applicant were entered by a District Court Judge and they had been reviewed by the Court of Appeal at the leave application and the renewed application.  The applicant is entitled to take the matter further to the Court of Final Appeal if he satisfies the requisite conditions.

19. We do not agree with Mr McCoy’s submission that s 34(3) of the High Court Ordinance, Cap 4 applies at all.  The leave application under s 83(Y)(2)(a) and the renewed application under s 83(Y)(3) are the same application, i.e. an application for leave to appeal.  The Chinese version of s 83(Y)(3) makes it abundantly clear when it refers to the right of the applicant to have “該申請” (that application) determined by the Court of Appeal if the single Justice of Appeal refuses his application.

20. An applicant for leave to appeal will automatically become an appellant if his leave application is granted and that probably explains why “an appellant includes a person who has given notice of application for leave to appeal” under s 2 of the Ordinance.  That does not mean that the renewed application is an appeal from the leave application.

21. S 34A of the High Court Ordinance empowers a single Justice of Appeal to exercise the power of the Court of Appeal and s 34A(2) provides:

“Where a single Justice of Appeal refuses an application to exercise any power of the Court of Appeal in pursuance of subsection (1), the applicant shall be entitled to have the application determined by the Court of Appeal.”

22. The Chinese version of “the application” in s 34A(2) is also “該項申請” (that application).  It does not say that the applicant shall be entitled to appeal against the refusal by the single Justice of Appeal. 

23. We are firmly of the view that the renewed application is the re-hearing of the leave application by the Court of Appeal and is not an appeal from the decision of the single Justice of Appeal.  We rejected Mr McCoy’s argument based on the applicant’s constitutional right.

24. Mr McCoy did not suggest actual bias and the remaining issue is the question of apparent bias.  We wish to point firstly that legislation not only does not prohibit, but expressly permits a single Justice of Appeal who has previously determined a leave application to sit in the Court of Appeal to determine the renewed application albeit in a civil appeal. [See O.59, r2C(3) of the Rules of the High Court]

25. In Sengupta v. Holmes [2002] EWCA Civ 1104, where Laws LJ (as Single Judge) had initially refused the leave application on paper, but which application was subsequently granted by a differently constituted Court after an oral hearing.  Laws LJ then sat as a member of the Court hearing the substantive appeal, but was asked to recuse himself on the ground of apparent bias.  The recusal application was refused.  Whilst the Rules of the High Court and Sengupta v. Holmes (supra) deal with civil matters, there should not be any distinction between civil and criminal matters when it comes to the question of a fair hearing.

26. The test for apparent bias is now settled and we only need to refer to the judgment of Ribeiro PJ in Deacons v White & Case Ltd [2004] 1 HKLRD 291 paras 20 and 21:

“20. However, recent English authority has resulted in a convergence between the English test and the test in other relevant jurisdictions. Such convergence was considered necessary in consequence of the Human Rights Act 1998, as the Court of Appeal explained in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at para 85 (CA), (although the court also pointed out (at paras 64-66) that steps in the direction of convergence had already been taken in Locabail (UK) Ltd v Bayfield Properties Ltd (leave to appeal) [2000] QB 451 at pp. 477-478). Having considered the ‘reasonable apprehension of bias’ test developed in Strasbourg, Lord Phillips MR (giving the judgment of the Court) formulated the test applicable in England and Wales as follows (at para 85):

The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

21.  This shift away from the Gough test was endorsed by the House of Lords in Porter v Magill [2001] YKHL 67, which slightly amended its formulation to drop reference to ‘a real danger’ (per Lord Hope at para 103).  This marked an acceptance in England and Wales, as in the other jurisdiction mentioned, that the view of the fair-minded and informed observer as to whether a reasonable apprehension of bias arises may differ from the reviewing court’s own view, and that it is through the prism of such an observer’s perception that the court should consider whether the case is one of apparent bias.”

27. It is important to bear in mind, under the aforesaid test, that we are concerned with the perception of a reasonable, fair-minded and well-informed observer and not just that of an ordinary reasonable person.

28. A fair-minded and well-informed observer is aware of the rules of the court and their operations.  He knows that judges in Hong Kong are professional judges and have taken judicial oaths to “serve the HKSAR conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit”.  He knows judges can keep an open mind and are able to act impartially at the renewed application by listening to and considering the argument afresh as well as the views of his colleagues, having made earlier decision on the leave application.  He knows that judges can and frequently do change their minds after listening to further and new arguments and even if they do not, the other members of the court may take a different view.

29. A fair-minded and well-informed observer would be aware that the refusal by a single judge under s 83Y(2)(a) of the Ordinance is not the end of the matter and is only a provisional decision and that at the renewed application under s 83(Y)(3) of the Ordinance,  the Court of Appeal will have to reconsider the entire case again and in doing so, the presiding judges (including the judge who has previously determined the leave application) will have the benefit not only of additional and/or fresh arguments, possibly from new Counsel, but also that of the collective wisdom of his colleagues through discussion.

30. A fair-mind and well-informed observer knows that, unlike appeals, all the issues are opened in renewed applications and can be reargued before the Court of Appeal; that additional matters on both facts and law can be introduced and that in suitable circumstances fresh evidence can be admitted.  To that extent, the approach adopted by the Court of Appeal in a renewed application can be more generous than that of a review process.

31. In our view, there is no risk that a reasonable, fair-minded and well-informed observer would conclude that there is a real possibility, or a real danger that the single Justice of Appeal who has previously determined the leave application would be biased.

32. The application for a certificate under s 32(2) of the Hong Kong Court of Final Appeal is out of time.  In any event, we are not persuaded that the questions proposed by Mr McCoy are reasonably arguable. We would refuse to certify those questions and dismiss the application.